Syed v Minister for Immigration
[2018] FCCA 2850
•2 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SYED v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2850 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application seeking judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant Student (Class TU) (Subclass 572) visa to the applicant – Administrative Appeals Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay temporarily as a student but rather used the Student visa program as a means of maintaining residence in Australia – Tribunal did not adopt a wrong test or construction of cl.572.223(1)(a) in coming to its findings – no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.499 Federal Court Rules 2011 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Raza v Minister for Immigration [2017] FCCA 1272 |
| Applicant: | ALEEM PASHA SYED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1883 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 2 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Young of Counsel |
| Solicitors for the Applicant: | G & S Law Group |
| Counsel for the Respondents: | Ms B. Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Grant leave to the Applicant to amend Ground 5 of the Amended Application filed in this Court on 25 October 2017, to substitute for the reference to “cl.572.223(1A)” a reference to “cl.572.223(1)(a)”.
The Amended Application filed in this Court on 25 October 2017 is dismissed.
That the Applicant pay the First Respondent’s costs of the proceeding in the sum of $5000.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth), the Applicant have up to and including 6 November 2018 to file any appeal from the above orders in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1883 of 2017
| ALEEM PASHA SYED |
Applicant
And
| MINISTER OF IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant is a male citizen of India aged 32 years, having been born on 9 April 1986.
By Amended Application filed in this Court on 25 October 2017, he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 29 May 2017, which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 27 October 2015, refusing to grant to him a Student (Temporary) (Class TU) (Subclass 572) visa (Student visa).
Background
On 16 April 2009 the Applicant was granted his initial Student visa offshore which was valid until 28 April 2011. He arrived in Australia on 23 April 2009.
He was granted a further Student visa which was valid until 28 April 2011, then a further Student visa was granted and was valid until 12 September 2015 and he then made the present Student visa application on 4 September 2015.
Statutory Requirements for the Grant of a Student Visa
Relevantly to this proceeding, the Applicant had to satisfy what is known as the genuine temporary entrant criterion comprised in cl.572.223 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations) which required that, inter alia, he be what is known as a “genuine applicant for entry and stay as a student”. Subclause 572.223 at the time of the decision provided as follows:
572.223
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a) the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) the applicant meets the requirements of subclause (1A) or (2)
(emphasis added)
Decision of Delegate
On 27 October 2015, the Delegate refused to grant the Student visa to the Applicant, on the basis that the Delegate was not satisfied that the Applicant genuinely intended to stay in Australia temporarily. In particular, the Delegate found that the primary objective of a Student visa holder in Australia was to study a registered course and progress academically. The Delegate gave weight to the fact that it appeared that the Applicant had undertaken a series of short, inexpensive courses, having only completed vocational courses in the six years that he had held the Student visa in Australia.
The Delegate found that the Applicant had not completed any courses above the vocational level and that he had maintained enrolment in short and inexpensive courses at a vocational level which indicated that he was using the Student visa program to maintain residence in Australia, rather than due to a genuine interest in study and academic progress. The Delegate accordingly refused to grant the Student visa to the Applicant.
Tribunal Decision
The Applicant then sought judicial review of the Delegate’s decision on 13 November 2015. At that point of time he gave a copy of the Delegate’s decision to the Tribunal. The initial decision of the Tribunal of 20 June 2016 was adverse to the Applicant but was set aside by his Honour Judge Smith by consent on 12 October 2016 because of the Tribunal’s failure to comply with [9(b)] of Direction Number 53 made by the Minister under s.499 of the Migration Act 1958 (Cth) (Direction 53).
Ultimately with respect to the Tribunal’s decision under review, the Tribunal invited the Applicant to appear at a second Tribunal hearing on 10 May 2016 by letter dated 12 April 2016.
By email dated 23 April 2016 sent from overseas, the Applicant informed the Tribunal that he would not be in Australia on the scheduled hearing date and asked for an adjournment, which was granted. The hearing before the Tribunal was then set down for 16 June 2016. At this point of time, the Applicant retained a registered migration agent who lodged a submission dated 9 June 2016 with the Tribunal in support of his application for review.
On 18 May 2017, the Applicant appeared with his registered migration agent and an interpreter before the Tribunal to give evidence and present arguments. In the result, the Tribunal affirmed the decision of the Delegate not to grant the Student visa to the Applicant.
At [5] of its Decision Record the Tribunal set out the student history of the Applicant since first coming to Australia. At [6] the Tribunal summarised that evidence as indicating that since his arrival in 2009 he had successfully completed English courses in 2009, a Certificate III in Financial Services in January 2010, a Diploma in Business in 2011, a Diploma of Accounting in 2013 and a Certificate IV in Information Technology in 2016.
At [7] of its Decision Record the Tribunal recorded that the Applicant indicated that on return to India he would join his father’s travel business known as Sana Tours and Travels (Sana Travel), located in Hyderabad. He claimed that it was a condition of his father that he could only join his father’s business on obtaining substantive qualifications.
At [15] of its Decision Record the Tribunal recorded additional information and submissions concerning the Applicant and his intentions. At [25], [29] and [55] the Tribunal recorded concerns that it had about inconsistencies between on the one hand the letter from Sana Travel dated 18 September 2015, which had indicated that the company had enhanced itself and developed efficiently in the last 10 years due to the massive cooperation and professional skills of the Applicant, when the position of the Applicant at the Tribunal hearing on the other hand was that he had never effectively worked for Sana Travel.
At [33], the Tribunal recorded its discussion with the Applicant concerning his study courses over the years since he had been in Australia and, in particular, which courses he had completed in 2016, but recorded that the Applicant said that he had forgotten or could not remember what courses he had completed in 2016.
At [35], the Tribunal recorded its concerns which it had raised with the Applicant that he had been in Australia for eight years and only completed four vocational courses and one ELICOS course.
At [38] of its Decision Record the Tribunal recorded the nature of the Applicant’s working in Australia and at [40] recorded that it had noted to the Applicant that he had been in Australia for eight years, and that he wanted to stay nine years, and questioned whether he was a temporary resident.
Then from [46] – [48] of its Decision Record the Tribunal set out the relevant statutory provisions and criteria governing the grant of a Student visa and, in particular, the necessity for the Tribunal to consider Direction 53, but noted at [49] that Direction 53 was not to be used as a checklist.
At [50], the Tribunal recorded that it had considered the Applicant’s claims against all the factors specified in Direction 53, and recorded its finding that the Applicant did not satisfy the genuine temporary entrant criterion.
Then at [55] – [56] and [58] of its Decision Record, the Tribunal specifically considered the Applicant’s position in his home country, responsive to and congruent with [9] of Direction 53.
At [57] of its Decision Record the Tribunal recorded why it gave no weight to the letter from Sana Travel as evidence as to why the Applicant was studying his current courses and to his future involvement in Sana Travel in India.
At [59] the Tribunal recorded its concern about the Applicant’s lack of knowledge of his current course and the subjects he had been enrolled in and that this added weight to its view that he was using his Student visa program to maintain migration rather than as a genuine student.
Then at [61] – [67] of its Decision Record the Tribunal set out its final conclusions and as I have said, in the result, affirmed the decision of the Delegate not to grant a Student visa to the Applicant.
Grounds of Attack from Tribunal Decision in this Court
The Applicant’s original Application was filed in this Court on 15 June 2017. By Amended Application filed on 25 October 2017, the Applicant relies only on Ground 5, which is to the following effect:
5. The Second Respondent erred by adopting a wrong construction of clause 572.223 and in particular in relation to clause 572.223 (1)(a) in that the Tribunal adopted a wrong test of whether the Applicant was a genuine student. See Raza v Minister of Immigration & Anor [2017] FCCA 1272
Consideration
Ground 5
In support of Ground 5 the Applicant referred to the decision of his Honour Judge Smith in this Court in Raza v Minister for Immigration [2017] FCCA 1272 (Raza). However, I note that in that case his Honour was considering a decision of the Tribunal which he regarded as “neither lengthy nor lucid”, and that its reasons were “far from comprehensive”, with parts that appeared to have been taken from a template, and that the reasons were also “cursory and poorly drafted”. That in my view is not the case here. In my view, nothing in Raza is dispositive of this case nor mandates success for Ground 5.
In his judgement in Raza his Honour was of the view that the Tribunal had failed to comply with Direction 53, in that it had ignored the Applicant’s circumstances in his home country, and did not consider or sufficiently consider logically and rationally the genuineness of the Applicant’s stay in Australia as a student. However, his Honour at [6] of Raza pointed out that cl.573.223 had two separate concerns, namely:
a) An intention to stay temporarily.
b) An intention to stay as a student.
In this matter, at the hearing Mr Young of Counsel appeared for the Applicant and Ms Rayment appeared for the Minister. Mr Young focused his submissions in amplification of the Applicant’s Written Outline of Submissions filed in this Court on 19 September 2018, by submitting that the Tribunal had committed legal error, had taken into consideration irrelevant considerations and had asked itself a wrong question in focusing on whether or not the Applicant was in Australia as a student rather than the temporary requirement or aspect of cl.572.223.
However, in my view the Tribunal has not committed jurisdictional error in adopting a wrong construction as alleged in Ground 5. The Tribunal had a task involving the consideration of whether the Applicant was a genuine applicant for entry and stay as a student because and in that he intended genuinely to stay in Australia temporarily, having regard to the circumstances then set out in cl.572.223(1)(a)(i) – (iv) and (b).
In my view, the Tribunal has legally correctly interpreted the criterion comprised in cl.572.223(1) and applied it. That can be substantially seen at [61] – [67] of its Decision Record where at [61] it uses the word “student” in two places, and it considers whether or not the Applicant is a genuine student, and it refers to the courses that he had studied. It then referred to the courses that he had not successfully completed, and it found that he was not a credible witness with respect to his submission that he was a genuine student.
The Tribunal then goes on at [62] of its Decision Record to record that it was of the view that the Applicant was using the Student visa program to maintain residence in Australia, which is inconsistent with the Applicant genuinely staying in Australia temporarily. So the Tribunal in [62] is looking to that part of cl.572.223 which required it to consider whether or not the Applicant was intending to stay in Australia temporarily.
Then at [65] of its Decision Record, the Tribunal expresses its satisfaction that the Applicant was not a genuine applicant for entry and stay as a student, and that the program was only being used to maintain ongoing residence, such constituting a finding against a genuine intention to stay in Australia temporarily.
At [66] of its Decision Record, the Tribunal goes on, having considered and referred to the Applicant’s circumstances overall, including to his position in India being his home country as required by Direction 53, and by reference to his study history to express its view that it was not satisfied that the Applicant was a genuine applicant for entry and stay as a student because it was not satisfied that he intended to genuinely stay in Australia temporarily. This is a reference to the express requirements of the criterion comprised in cl.572.223.
In my view, the Tribunal has not committed legal error, has not taken into account irrelevant considerations and has not asked itself a wrong question, but rather has correctly considered the requirements of cl.572.223 upon its proper construction.
It follows that the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error as alleged by Ground 5 and the Amended Application is to be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 10 October 2018
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